Reckless Negligence: Expanding the Case Against Boston College

In this post, I provided evidence from court records to show that Boston College surrendered more of its Belfast Project interviews than the government had subpoenaed. Now I’m going to add another layer to the discussion of the very same materials:

Boston College was warned in advance that the British government was likely to embark on a fishing expedition, expanding its request to the U.S. government for subpoenas of interviews with former members of republican paramilitaries in Northern Ireland. The researchers who managed and conducted the interviews gave that warning, and also offered BC a way to protect the targeted material from further subpoenas. And BC missed the chance.

Warned that more subpoenas of confidential and politically explosive research material were likely, and given a way to protect against that likelihood, Boston College did nothing.

This means that, first, BC gave up more material than the government subpoenaed; but also, second, that the material in question could have been removed to a safer jurisdiction before new subpoenas were issued.

Evidence in a moment, but first a bit of critical background: BC received a first set of subpoenas for Belfast Project material on May 5, 2011. See page two of this court document for that information. The first subpoenas narrowly targeted archived interviews with just two people: Brendan Hughes and Dolours Price, both members of the Provisional IRA.

On August 3, 2011, BC received a second set of subpoenas. See page two of this court document for that information. These subpoenas were much more broadly framed, seeking access to “any and all” interviews in the Belfast Project collection that made reference to the kidnapping and murder of Jean McConville. (This is where every interview in the PIRA collection was lost; since BC never bothered to figure out which interviews contained such references and were germane to the subpoenas, they ended up turning over every interview to the federal court.)

So, to begin with, BC had ninety days between these two subpoenas to think about the possibility that the UK would expand its efforts to get confidential material from an embargoed collection.

Early in that ninety day period between subpoenas, several discussions made the threat of new subpoenas explicit. Ed Moloney, an Irish journalist who had run the Belfast Project, and project researcher Anthony McIntyre both warned BC officials of the possibility that new subpoenas would be issued. Those warnings were delivered to Thomas Hachey, the executive director of the Center for Irish Programs, and Burns Librarian Robert O’Neill.

Below, a May 31 email message to Hachey from Moloney, with redactions at the top to protect the identities of interviewees and to hide sensitive information on the project (note that the redactions end just before a sentence that says, “essentially it is this,” the place in the message where the description of Moloney’s proposal to Hachey begins):

So Moloney proposes that IRA interviews be moved to the Republic of Ireland, and placed in the hands of the researcher who conducted those interviews. Irish officials would be less obtuse than the DOJ about the politics of a British fishing expedition, and less malleable. And Anthony McIntyre, who would personally hold the interview material, “would happily go to jail” to protect it. (This is more than talk: McIntyre spent eighteen years in Long Kesh.) Moloney expresses a sense of urgency: “the important thing here is speed.”

Next, here’s a June 2 email from Moloney to O’Neill, with similar redactions:

Again, a clear warning: “i believe there is a strong possibility that the authorities may be back with another subpoena.” And a clear proposal to assure the confidentiality of material that BC has promised to protect: “we may have to consider returning some interviews.” Note also that this message says Moloney has talked with Jeffrey Swope, BC’s outside lawyer in the matter, who (Moloney says) has told him that a fishing expedition for more material is a real possibility.

So Hachey has also talked to McIntyre, who “explained his concerns in much the same context as you had.” He has now heard multiple warnings, urgently and repeatedly expressed. His response is remarkable: “under no circumstances would BC allow the documents to be sent to an alternative site (be it in the US or Ireland)” because BC’s attorneys “felt that did violate the understanding that we had with participants re: the safe deposit of their recollections.”

Warned that new and broader subpoenas were likely, BC held a threatened collection in place, waiting for subpoenas to arrive,because of their commitment to protect the confidentiality of the collection. The result: the new subpoenas arrived, at which point it was too late to protect anything, and every interview in question was ultimately turned over to the federal court in Boston.

On Wednesday evening, I sent an email message to Hachey, Swope, and BC spokesman Jack Dunn, asking them a series of questions about these email messages between Moloney and BC officials. I offered to delay this post if they told me they wanted to respond but needed more time. A full business day has passed; I received no responses at all. If anyone at BC responds at some point, I’ll post the response here. Of course, the comment thread to this post is wide open to anyone at BC, unmoderated and unedited. I only remove spam. (I also have received no response to the question I asked Dunn about the ownership of the interview materials.)

I think they ought to explain themselves. Obviously they don’t have to do it here. But somewhere, honestly and in detail, and soon.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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